The civilian-combatant frame persists as the main legal lens through which lawyers organize the relationships of conflict zone actors. As a result, little attention has been paid in international legal scholarship to different gradations of ‘civilianness’ and the ways in which some civilians might compete to distinguish themselves from each other. Drawing attention to international humanitarian actors – particularly those working for NGOs – this article explores the micro-strategies these actors engage in to negotiate their relative status in war. Original qualitative empirical findings from South Sudan illuminate the way in which humanitarians struggle over distinction with individuals working for the UN peacekeeping mission, UNMISS. As is shown, humanitarian actors are doing away with a static civilian-combatant binary in their daily practice. A more fluid logic informs both their self-conceptualization and their interactions with others who share the operational space. Humanitarian actors envision civilianness as a contingent concept, and they operate according to a continuum along which everything is a matter of degree and subtle gradation. As civilianness is detached from the civilian, any given actor might acquire or shed civilian-like, or combatant-like, characteristics at any moment. The distinction practices that humanitarian actors enact can be understood as a bid for legibility, so that they might be rendered intelligible in international law and in the eyes of other actors as a special kind of civilian – the ‘civilian plus’.

A question such as this one usually results in a slightly incredulous smile on the addressee's face, as if it implies an assumption that there is time to spare in the life of an international lawyer faced with a myriad of interesting-looking publications. For a long time, writing a monograph used to be the keystone, the ultimate test, to join the academic ranks – yet today, universities grant PhD titles based on the writing of separate articles on a common theme and doctoral researchers are increasingly encouraged to choose this option, so as to ensure their ideas actually reach the intended audience. Arguably, today's academic audience is assumed not to have, or at least not to make, the time to read an entire book.

While the cholera outbreak in Haiti still claims victims every month, it is also the backdrop of one of the biggest legal battles the UN has been engaged in – one for the recognition of harm caused and for reparations for victims of cholera. Having used its immunity to disengage from the issue, the UN finally changed its stance in December 2016 and apologized for the organization’s role in the cholera outbreak. This article analyses the role of the elected members of the Security Council – alongside other key stakeholders – in contributing to the UN’s change of policy. Based on privileged access to a number of actors in this politico-legal fight, this article argues that elected members of the Security Council have played a crucial role in pushing the UN to ‘do the right thing’. This article, along with other contributions to this special issue, sheds a different light on the practices inside the Security Council, demonstrating that elected members are far from being powerless, as most of the literature on the subject tends to assume. They can successfully play a significant role inside the organization when the right conditions permit them to play this role.

This article examines private sector complicity in governmental corruption that violates economic and social rights. Although banks and multinational corporations typically play critical roles in facilitating the diversion of public revenues away from the provision of social services, the link between the private sector, corruption, and human rights violations remains underexplored. This article therefore examines this relationship and explores the viability of a standard for assessing the complicity of the private sector in such violations of economic and social rights. Ultimately, the state-centred nature of the international human rights system limits the utility of any complicity standard for non-state actors.

The United States has an obvious interest in obtaining custody of and prosecuting and punishing those responsible for plotting terrorist attacks against it. The forcible abduction of suspects has in the past been a tactic favoured by it in order to obtain such custody; however, abductions are problematic, since they necessarily involve infringements of human rights, as well as the infringement of territorial sovereignty. Extradition is by far the more preferable means, since it ensures an adequate respect for human rights. However, various US policies relating to the treatment of terrorist suspects are likely to create obstacles to extradition.

Since its modern inception in the 1960s, international environmental law (IEL) has faced three main challenges: (i) justifying the need for an international regulation of environmental issues (legitimacy); (ii) finding mechanisms to ensure compliance with IEL (effectiveness); and (iii) distributing equitably the benefits and burden of environmental protection (fairness). While it is nowadays possible to say that the legitimacy of IEL is no longer in question, the need to respond to challenges (ii) and (iii) has never been more pressing. This is particularly the case in the context of the redesign of the climate change regime (CCR), as the responses to (ii) and (iii) may conflict with each other. Industrialized countries who historically contributed the most to the artificial increase in greenhouse gases (GHGs) in the atmosphere have been matched, and even surpassed, in their level of GHG emissions by countries such as China, India, or Brazil, who are now being pressed to undertake real emissions-reduction commitments. Historically, however, none of these latter benefited from the emission laxity characterizing the nineteenth century and most of the twentieth century to further their development. While imposing specific emissions-reduction commitments on them would seem unfair, such commitments are nevertheless critical for the effectiveness of the regime both directly and indirectly (as without such commitments, industrialized countries may be reluctant to join or uphold a regime). The purpose of this article is to spell out in an orderly analytical manner the types of issue that must be addressed in seeking a balanced solution. This type of analysis can be conducted from several perspectives. The most directly relevant disciplines to deal with fairness considerations are admittedly ethics and political philosophy, and there is indeed a growing literature on climate fairness. Although this literature is briefly surveyed, the article focuses on the fairness dimensions of the existing legal arrangements or those currently being negotiated. There is a considerable gap between the theoretical approaches to climate fairness and the manner in which considerations of fairness operate in practice. This gap is mainly due to the need to account for political considerations or, in other terms, to balance fairness with political effectiveness. When such considerations are taken into account, the picture that emerges is quite different. The CCR is not built upon a single approach to fairness. Rather, fairness considerations are integrated through a patchwork of criteria used to distribute different objects (burden of emission reductions, emission rights, contribution to financial and technological assistance, and access to such assistance) among different actors situated at different levels.

A continuing debate within international law research is whether there is an emerging international constitutional order. This journal devoted an issue to this discussion and there have been a number of books and articles written on the subject. Indeed, the philosopher Jürgen Habermas has recently joined the debate by writing an essay entitled (in the English translation) ‘Does the Constitutionalization of International Law Still Have a Chance?’ The essay reminds the reader of constitutionalism's original philosophical roots in Kantian cosmopolitanism. Habermas argues that the world dominated by nation-states ‘is indeed in transition towards the postnational constellation of a global society’. He contrasts this vision with the realist opinion that the taming of political power through law is only possible within a sovereign state and with a more recent view postulating a vision of a liberal world order under the banner of Pax Americana. In support of the Habermas position, it can be argued that as a result of the UN 60th Anniversary Summit's adoption of the international norm of ‘the responsibility to protect’, there is a trend towards constitutional values in our international system. As Anne Peters states, ‘[t]he most fundamental norms might represent global constitutional law.’

For the first time in the history of international criminal justice, victims of mass crimes have been granted the status of so-called ‘civil parties’ at the Extraordinary Chambers in the Courts of Cambodia (ECCC). This status grants them – at least theoretically – the right to participate in the proceedings as a formal party with broad participatory rights similar to the those of the defence and the prosecution. While the ECCC is exemplary in how it has addressed the issue of victims’ participation, practical necessities and judicial skepticism have led to significant changes in the civil party mechanism and continuously constrained participatory rights. First, changes in the ECCC's Internal Rules have significantly altered the original civil party mechanism and led to a form of victim participation similar to the one practised at the International Criminal Court (ICC), thus departing from the true meaning of a partie civile. Judicial decisions by the ECCC's judges, as well as changes in the Internal Rules, have abrogated the strong civil party mechanism that was originally anticipated in Cambodian criminal procedure law. Second, the practical challenges surrounding victim participation have been enormous. The Court itself was struggling due to lack of funding and lack of prioritization of a meaningful outreach program for victims and civil parties. The ECCC's Public Affairs Section (PAS) and the Victims Support Section (VSS) held the responsibility of reaching out to the general Cambodian population. However, it was Cambodian NGOs that ultimately established a collaborative outreach system and collected more than 8,000 Victim Information Forms (VIFs). All these efforts notwithstanding, only political willingness and a Cambodian discussion of how to deal with the vast number of perpetrators beyond a handful of criminal trials, can lead to a process of coming to terms with one's past.

A wave of interdisciplinary scholarship in the last two decades has managed to place empires at the center of the history of international law. This article surveys key insights resulting from this move and assesses remaining challenges. In explaining how the study of law in particular imperial locations can illuminate global legal transformations, the article identifies cross-cutting themes of articles in this special volume.

The author critically analyzes the judgement rendered by the ICJ on 14 February 2002, in the Arrest Warrant of 11 April 2000 case. The Court's reasoning is criticized for both its poor motivation in acknowledging the existence of a rule of customary international law, providing for absolute inviolability and immunity for incumbent ministers for foreign affairs before the national courts of other states, and for the rather theoretical manner in which the Court asserts that immunity does not amount to impunity. It is also regretted that the Court did not pronounce on the issue of universal jurisdiction, thereby missing a great opportunity to clarify a controversial but increasingly important issue of international (criminal) law.

The Rwanda Tribunal is an independent judicial institution established by the Security Council under Chapter VII of the UN Charter. It is the first international court having competence to prosecute and punish individuals for egregious crimes committed during an internal armed conflict. While the Government of Rwanda was a member of the Security Council and participated in the negotiations regarding the creation of the Tribunal, there were significant differences of opinion between it and the Council regarding the Tribunal's jurisdiction and competence. This article discusses the special features of the Rwanda Tribunal, as compared to the Yugoslavia Tribunal.

This article offers one of the first comprehensive analyses of China’s emerging practice in subsidizing the low carbon energy (LCE) transition by using the new energy vehicles (NEVs) industry as a case study. It puts forward a fresh framework for this analysis by dividing the NEV value chain into three segments: upstream, midstream, and downstream. Based on this framework, it expounds a strategic shift of China’s subsidization strategy across the NEV value chain, that is, from disproportionately subsidizing the midstream segment that produces NEVs and parts to increasingly subsidizing the upstream and downstream segments to promote research and development (R&D) and expansion of NEV infrastructure and consumption throughout the economy. It argues that this shift mainly comes out of the evolution of China’s industrial policies and economic priorities, which will continue to play a decisive role in the future restructuring and transformation of the NEVs sector. This shift may also reflect China’s intention to reduce potential trade conflicts and maximize WTO-compliance but only to the extent that doing so would not unduly constrain its capacity to pursue its economic goals and industrial policies. In addition, while the WTO rules and jurisprudence may accommodate some of these subsidies (e.g., NEV infrastructure subsidies), the relevant rules will need to be further developed to provide more policy space for other types of subsidies used worldwide (e.g., R&D subsidies). Until then, it remains debatable as to whether the WTO provides sufficient room for countries to facilitate a green recovery in the post-pandemic era.

Although multiparty elections are not explicitly required by international human rights instruments or the European Convention on Human Rights (ECHR), certain human rights provisions have been interpreted as leading to such a requirement. While a democratic interpretation of human rights law has been settled in the ECHR framework, it remains disputable at the universal level. Despite numerous references to democracy in the documents adopted in the UN framework in the post-Cold War era, this article argues that an explicit link between international human rights law and multiparty elections has yet to be established. On the other hand, such a link has been developed by the European Court of Human Rights (ECtHR). Multiparty elections are considered to be part of the European public order. Moreover, the ECtHR has shown that it understands democracy beyond the existence of electoral procedures. But the role and understanding of democracy within the ECHR cannot be universalized.

Russia’s full-blown invasion of Ukraine has reinvigorated the debate over international criminal law’s selectivity. While many have welcomed the renewed interest in accountability for international crimes in the wake of the ‘Ukraine moment’, others have emphasized double standards in the enforcement of international criminal law, including a lack of accountability for Western violations and disproportionate attention to European victims. This article interrogates the master narratives about international criminal law’s post-Ukraine selectivity and complicates accusations of bias by emphasizing Ukraine’s liminal status in the global order and the cross-border nature of aggression as an explanatory factor for differentiated responses from states. It suggests that concerns about an invidious ‘Ukraine effect’ on international criminal law enforcement are less persuasive after the International Criminal Court’s decade-long conflict with the African Union, and that a decentring of investigations to Eurasia should be construed not only as a moment of soul-searching but also as a welcome opportunity to rebalance the scales of justice. The article encourages international criminal law stakeholders to move beyond critique that unwittingly essentializes Eurocentric assumptions and to devise a more compelling vision of global criminal law enforcement that challenges crimes and inequalities both between and within states.

On 16 March 2016, the Prosecutor of the International Criminal Court (ICC) rejected on jurisdictional grounds a victims’ request to investigate a case of environmental destruction by Chevron in Ecuador. A little over a year later, on 15 September 2016, the Prosecutor released a policy paper indicating that her office would consider hearing cases of environmental destruction. This article examines how the ICC can prosecute environmental destruction as a crime against humanity under Article 7 of the Rome Statute. It presents a survey of the potential jurisdictional and substantive issues of prosecuting environmental issues and uses the victims’ request asking the Prosecutor to investigate environmental destruction by Chevron in the Ecuadorian Amazon as a backdrop. The article proceeds in three parts. Firstly, it discusses the request by the victims in Ecuador asking for the Prosecutor to investigate. Secondly, it sets out the basic jurisdictional framework of the ICC and analyzes why the Prosecutor rejected the victims’ request. Thirdly, it examines Article 7 and concludes that while peacetime environmental destruction committed by a non-state actor that results in a humanitarian atrocity can qualify as a crime against humanity, the factual circumstances alleged in the Ecuadorian victims’ request did not amount to a crime against humanity under the Rome Statute.

This article examines the debate on the use of force ‘from the periphery’, both in the geographical sense and outside the mainstream discourse. It offers an alternative reading of the evolution of the law on the use of force, starting not with the end of the Cold War, but with the process of decolonization. My argument is that this reading is missing from the debate framed as an opposition between a restrictivist and an expansionist camp. Yet it is crucial if one wants to understand the normative pull that is left of legal concepts such as non-intervention, aggression, and self-determination.

The International Criminal Court (ICC) was established with the aim of prosecuting individuals for the gravest crimes of concern to the international community. Yet some provisions of its Statute (the Rome Statute) recognize the need for temporarily setting aside criminal investigations or prosecutions in favour of different considerations. Two of these provisions are Article 53(1)(c) and (2)(c) of the Statute. They allow the Prosecutor of the Court to use his or her discretion in deciding not to initiate an investigation or a prosecution in the ‘interests of justice’. Nonetheless, the ambiguity of this phrase, coupled with an absent definition, have given rise to a polarized debate about its meaning and the Prosecutor's ensuing margin of discretion: some consider matters of peace and security and alternative justice mechanisms as possible ‘interests of justice’, while others exclude them. Among those adopting the latter view is the ICC's Office of the Prosecutor (OTP), as can be inferred from a 2007 Policy Paper on the Interests of Justice and a 2013 Policy Paper on Preliminary Examinations, which continue to be upheld by the Office. Against this backdrop and amid new developments at the ICC which call into question the OTP's position, the purpose of this article is to develop a comprehensive interpretation of Article 53(1)(c) and (2)(c) of the Rome Statute, using all the interpretative tools provided by Articles 31 to 33 of the Vienna Convention on the Law of Treaties.

For over three decades, it has been the International Law Commission's position that the circumstance of consent involves something other than the consent which, through the rule pacta sunt servanda, imparts objective force to international agreements. During the tenure of the second Special Rapporteur on the law of state responsibility, Roberto Ago, the Commission adopted the view that the former suspends the international obligations which are incumbent on states whereas the latter functions to create, modify, or extinguish the rules whence such obligations stem forth. However, as the result of the study carried out by its last Special Rapporteur, James Crawford, the Commission has now come to distinguish between the circumstance of consent defined as a justification for non-performance of subsisting obligations, and consent defined as a requirement for the application of obligations. In this contribution, it is argued that both analyses are problematic. The former gives succour to a mistaken view of the sources of international law. The latter is based on a misunderstanding of the primary-rule–secondary-rule terminology; it justifies itself by referring to an ill-conceived definition of the notion of peremptory norms, and no less importantly undermines the purposefully cumbersome mechanism envisaged in the 1969 Vienna Convention on the Law of Treaties for suspension of multilateral treaties as between certain of the contracting parties only.

This note evaluates the application of rules on judicial independence and impartiality in two international decisions issued in 2004 – the ICJ Order on Composition in the Wall Advisory Proceedings and the disqualification decision of the Special Court for Sierra Leone in Sesay – and compares them with a code of judicial conduct recently prepared by an ILA study group (the Burgh House Principles on the Independence of the International Judiciary). We assert that the approach taken by the ICJ in Wall is excessively restrictive and is out of step with contemporary tendencies to embrace stricter standards of judicial independence and impartiality.

This essay traces the relationship between activists and academics involved in the campaign for “women's rights as human rights” as a case study of the relationship between different classes of what I call “knowledge professionals” self-consciously acting in a transnational domain. The puzzle that animates this essay is the following: how was it that at the very moment at which a critique of “rights” and a reimagination of rights as “rights talk” proved to be such fertile ground for academic scholarship did the same “rights” prove to be an equally fertile ground for activist networking and lobbying activities? The paper answers this question with respect to the work of self-reflexivity in creating a “virtual sociality of rights.”